Motorola Mobility, Inc. v. Apple, Inc.

Filing 224

MOTION to Compel Responses to Interrogatories Regarding Set-Top Box Patents (Nos. 19-22) by Apple, Inc.. Responses due by 2/16/2012 (Attachments: # 1 Affidavit Declaration of Jill Ho, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C-SEALED, # 5 Exhibit D-SEALED, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N, # 16 Exhibit O, # 17 Exhibit P, # 18 Exhibit Q, # 19 Exhibit R, # 20 Exhibit S, # 21 Exhibit T, # 22 Exhibit U-SEALED, # 23 Exhibit V-SEALED, # 24 Exhibit W-SEALED, # 25 Exhibit X-SEALED, # 26 Exhibit Y-SEALED, # 27 Exhibit Z-SEALED, # 28 Exhibit AA-SEALED, # 29 Exhibit BB-SEALED, # 30 Exhibit CC-SEALED, # 31 Exhibit DD-SEALED, # 32 Text of Proposed Order)(Pace, Christopher)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
Case No. 1:10cv023580-Civ-RNS-TEB

MOTOROLA MOBILITY, INC.,
Plaintiff,

JURY TRIAL DEMANDED

v.
APPLE INC.,
Defendant.
APPLE INC.,
Counterclaim Plaintiff,
v.
MOTOROLA, INC. and
MOTOROLA MOBILITY, INC.,
Counterclaim Defendants.

DECLARATION OF JILL J. HO IN SUPPORT OF APPLE INC.’S
MOTION TO COMPEL RESPONSES TO INTERROGATORIES
REGARDING SET-TOP BOX PATENTS (NOS. 19-22)

I, Jill J. Ho, declare under penalty of perjury, that the following is true and
correct:
1.

I am a member of the bar of the State of California, admitted pro hac vice in this

action and an associate at the law firm of Weil, Gotshal & Manges LLP, counsel of
record for Apple Inc. (“Apple”) in the above-captioned matter. The matters referred to in
this declaration are based on personal knowledge and if called as a witness I could, and
would, testify competently to these matters.
2.

On May 18, 2011, I served Apple’s infringement contentions. Attached hereto as

Exhibit A is a true and correct copy of Apple’s infringement chart for U.S. Patent No.
5,583,560. At Judge Ungaro’s request, Apple’s infringement contentions were also filed
on October 28, 2011. D.E. 161.
3.

Attached hereto as Exhibit B is a true and correct copy of Apple’s Third Set of

Interrogatories, served on November 14, 2011.
4.

Attached hereto as Exhibit C is a true and correct copy of the responses to

Apple’s Third Set of Interrogatories served by Motorola Solutions, Inc. on December 19,
2011.
5.

Attached hereto as Exhibit D is a true and correct copy of the responses to

Apple’s Third Set of Interrogatories served by Motorola Mobility, Inc. on December 19,
2011.
6.

On November 10, 2011, I served a notice of Apple’s subpoenas to various cable

companies, including AT&T, Inc., Comcast Corp., Mediacom Communications Corp.,
Time Warner Cable, Inc., Bright House Networks, LLC, Charter Communications, Inc.,

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Cox Communications, Inc., and Suddenlink Communications. Attached hereto as Exhibit
E is a true and correct copy of that notice.
7.

On November 14, 2011, I received a letter from David Perlson of Quinn Emanuel

Urqhart & Sullivan, LLP, arguing that Apple’s subpoenas unnecessarily burdened
Motorola’s clients and proposing that the parties meet and confer to discuss “how these
various requests are relevant and which discovery requests may be addressed by
Motorola rather than the subpoenaed third-parties.” Attached hereto as Exhibit F is a true
and correct copy of that letter.
8.

On November 15, 2011, I participated in a teleconference with counsel for

Motorola, Mr. Perlson and Ben Quarmby of Quinn Emanuel Urqhart & Sullivan, LLP, to
meet and confer regarding various discovery issues. Elena DiMuzio and Leslie Harvey
of Covington & Burling LLP, co-counsel for Apple, also participated in this call. Among
the issues discussed were mutual supplementation of interrogatory responses and Apple’s
subpoenas to cable companies. No agreements were reached during this call.
9.

On November 17, 2011, I participated in a follow-up discussion with the same

individuals listed above.

During this call, the parties agreed to supplement their

interrogatory responses by December 16, 2011. Counsel for Motorola also agreed that it
would provide the discovery Apple sought with regard to the asserted set-top box patents
(U.S. Patent Nos. 5,583,560, 5,594,509, and 5,621,456), so Apple would not need to
bother Motorola’s clients for such information.
10.

Attached hereto as Exhibit G is a true and correct copy of a November 21, 2011

letter from Mr. Quarmby to me, enumerating which interrogatories the parties had agreed
to supplement. In this same letter, Mr. Quarmby indicated that at least certain deposition

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topics and document requests in Apple’s subpoenas to the aforementioned cable
companies could be addressed by Motorola.1 In subsequent telephonic discussions with
Mr. Quarmby, I clarified that Apple was not only interested in information and
documents in the categories identified in his letter of November 21, 2011, but also any
information and documents about the software loaded on the accused Motorola set-top
boxes, especially the interactive programming guide software implicated by the asserted
claims of Apple’s patents-in-suit. Mr. Quarmby assured me that Motorola would make
every effort to ensure that Apple would get the information it needed.
11.

My contemporaneous conversations with counsel for the subpoenaed cable

companies confirmed my belief that Motorola intended to produce the set-top box
discovery Apple requested. I was separately informed by several cable companies that
counsel for Motorola had promised to produce relevant documents so there was no need
for the cable company to respond to Apple’s subpoena.

In reliance on these

representations, I confirmed that Apple would not pursue its subpoenas, but reserved the
right to do so in the event that Motorola did not fulfill its promises. Attached hereto as
Exhibit H is a true and correct copy of a series of emails from November 16th to
November 30, 2011, exchanged between me and David Benyacar, counsel for Time
Warner Cable. Attached hereto as Exhibit I is a true and correct copy of a series of
emails dated November 18, 2011, exchanged between me and Brian Ferrall, counsel for
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The topics and requests specifically listed in Mr. Quarmby’s letter pertain to
communications between Motorola and each cable company; agreements or contracts
between Motorola and each cable company; payments made to Motorola for any accused
set-top box systems; design specifications supplied by each cable company to Motorola
pertaining to hardware in the accused set-top box systems; and any hardware schematics
or bills of materials supplied by each cable company to Motorola for any accused set-top
box systems.

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Comcast. Attached hereto as Exhibit J is a true and correct copy of a series of emails
from November 21, 2011 to December 12, 2011, exchanged between me and Joel
Samuels, counsel for Suddenlink Communications. Attached hereto as Exhibit K is a
true and correct copy of a series of emails dated November 30, 2011, exchanged between
me and Cody Harrison, counsel for Bright House Networks.
12.

On December 14, 2011, I received another call from Mr. Quarmby, requesting an

extension of the date for mutual supplementation of interrogatory responses from
December 16 to December 21. Attached hereto as Exhibit L is true and correct copy of
an email dated December 14, 2011 from me to Mr. Quarmby agreeing to this proposed
extension and confirming our understanding of which interrogatories the parties were
planning to supplement.
13.

On December 19, 2011, Motorola served its responses to Apple’s third set of

interrogatories.
14.

On December 21, 2011, counsel for Motorola indicated that contrary to our prior

agreement, it was not planning to serve responses for all of the interrogatories it had
agreed to supplement. Attached hereto as Exhibit M is a true and correct copy of a
December 21, 2011 email from David Elihu of Quinn Emanuel Urqhart & Sullivan, LLP,
counsel for Motorola, to me.
15.

A few hours later, I met and conferred with Marshall Searcy of Quinn Emanuel

Urqhart & Sullivan, LLP, counsel for Motorola. Mr. Searcy informed me that Motorola
was not prepared to supplement all of the interrogatories Mr. Quarmby had promised to
supplement. During this call, I observed that Motorola’s responses to Apple’s third set of
interrogatories were similarly deficient and asked that Motorola supplement those

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responses as well. Attached hereto as Exhibit N is a true and correct copy of an email
dated December 21, 2011 from me to Mr. Searcy, confirming our agreement that, even
though Apple was ready to serve its responses and Motorola was partially ready to serve
its responses, neither side would serve its supplemental interrogatory responses until after
the holidays.
16.

Attached hereto as Exhibit O is a true and correct copy of an email dated

December 26, 2011 from me to Mr. Searcy, proposing January 6, 2012 for the exchange
of supplemental interrogatory responses.

Subsequent to this, Mr. Searcy counter-

proposed January 16th. I also met and conferred with Cathleen Garrigan of Quinn
Emanuel Urqhart & Sullivan, LLP, counsel for Motorola, on December 29, 2011, to
clarify why Apple believed Motorola’s responses to its third set of interrogatories were
deficient. Attached hereto as Exhibit P is an email dated January 3, 2012, from me to
Mr. Searcy confirming our agreement to exchange supplemental interrogatory responses
on January 16, 2012. In that email, I emphasized that we were agreeing to give Motorola
the extra time it requested with the expectation that its supplemental responses would be
substantive. Attached hereto as Exhibit Q is a true and correct copy of the email dated
December 29, 2011, from me to Ms. Garrigan which was included as an attachment to
my January 3 email.
17.

Attached hereto as Exhibit R is a true and correct copy of a January 13, 2012

email from Ms. Garrigan to me, agreeing to extend the date for mutual supplementation
of interrogatory responses from January 16 to January 17, in light of the Martin Luther
King holiday.

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18.

On January 17, 2012, the parties exchanged supplemental interrogatory responses.

Attached hereto as Exhibit S is a true and correct copy of my email serving Apple’s
supplemental responses.
19.

Contrary to its prior agreements, Motorola only served supplemental responses

for six out of the fourteen interrogatories. Attached hereto as Exhibit T is a true and
correct copy of an email dated January 17, 2012 from me to Ms. Garrigan, requesting a
meet and confer.
20.

On January 18, 2012, my colleague Jason Lang and I participated in a

teleconference with Mr. Searcy and John Duchemin of Quinn Emanuel Urqhart &
Sullivan, LLP, counsel for Motorola. During this call, Mr. Searcy stated that Motorola
believed its supplementation was complete and did not intend to provide further
supplementation of any of its interrogatory responses.

When I raised the fact that

Mr. Quarmby had promised that Motorola would provide the discovery Apple needed
with regard to the set-top box patents so we would not need to bother Motorola’s clients,
Mr. Searcy stated that he was not aware of that agreement, but he would check with
Mr. Quarmby, who was no longer an attorney at Quinn Emanuel Urqhart & Sullivan,
LLP. We agreed to continue our discussion regarding Motorola’s responses to the set-top
box interrogatories the following week.
21.

On January 24, 2012, Mr. Lang and I met and conferred again with Mr. Searcy

and Mr. Duchemin. During this call, Mr. Searcy stated that it was his understanding that
Motorola’s agreement to provide information relating to Apple’s set-top box patents had
been limited to document requests and did not include interrogatories. He confirmed that
Motorola would not be supplementing its responses to Apple’s Interrogatory Nos. 19-22.

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22.

Attached hereto as Exhibit U is a true and correct copy of a January 3, 2012 email

from Mr. Lang to Mr. Duchemin, cc’ing me.
23.

Attached hereto as Exhibit V is a true and correct copy of a January 3, 2012 email

from Mr. Lang to Ms. Garrigan, cc’ing a service list of which I am a member.
24.

Attached hereto as Exhibit W is a true and correct copy of a January 16, 2012

email from Mr. Lang to Ms. Garrigan and Mr. Duchemin, cc’ing a service list of which I
am a member.
25.

Attached hereto as Exhibit X is a true and correct copy of a document produced

by Motorola bearing the Bates numbers MOTO-APPLE-00039995686-691.
26.

Attached hereto as Exhibit Y is a true and correct copy of a document produced

by Motorola bearing the Bates numbers MOTO-APPLE-0004134851-864.
27.

Attached hereto as Exhibit Z is a true and correct copy of a document produced

by Motorola bearing the Bates numbers MOTO-APPLE-0007260321-382.
28.

Attached hereto as Exhibit AA is a true and correct copy of a document produced

by Motorola bearing the Bates numbers MOTO-APPLE 0004151909-928.
29.

Attached hereto as Exhibit BB is a true and correct copy of a document produced

by Motorola bearing the Bates numbers MOTO-APPLE 0007345738-763.
30.

Attached hereto as Exhibit CC is a true and correct copy of a document produced

by Motorola bearing the Bates numbers MOTO-APPLE 0007333742-745.
31.

Attached hereto as Exhibit DD is a true and correct copy of a document produced

by Motorola bearing the Bates numbers MOTO-APPLE-0003991503-506.

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I declare under penalty of perjury under the laws of the United States of America
that the foregoing is true and correct.
Executed on January 30, 2012 at Redwood Shores, California
_______/s/ Jill J. Ho______________
Jill J. Ho

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